On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-01-0114.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2009
Before Judges Lisa and Baxter.
Defendant Keith West appeals from his January 25, 2008 conviction, following a trial by jury, on charges of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a) (count one); and third-degree resisting arrest by physical force or violence, N.J.S.A. 2C:29-2(a)(3)(a) (count two). The judge sentenced defendant to a three-year term of probation, which included, as a special condition of probation, a requirement that defendant serve 364 days in the county jail. We reject defendant's contention that his conviction must be reversed because: 1) the State's examination of an uncooperative witness resulted in the jury hearing impermissible hearsay evidence; 2) a police officer characterized defense witnesses' testimony as lacking in credibility; and 3) the prosecutor's closing argument contained instances of prosecutorial misconduct. Defendant also asserts that the judge improperly denied his motion for a judgment of acquittal on count one. We reject these contentions and affirm.
On April 23, 2005, New Jersey State Trooper Augustus Nyekan was dispatched to investigate a complaint in Fairfield Township that juveniles were throwing rocks at a house and at the homeowner's animals. After Nyekan reviewed the homeowner's videotape that depicted the conduct in question, the homeowner informed him that she did not wish to press charges, but hoped the officer would speak to the juveniles and their parents. After walking through the homeowner's backyard to the property where one of the juveniles lived, Nyekan encountered Kenneth West, the father of defendant. While speaking with West, a group of other individuals arrived on foot, while defendant, Keith West, arrived on a golf cart along with several juveniles.
Nyekan testified that there was a can of beer in the golf cart and he could tell that defendant had been drinking and, in fact, was intoxicated. When defendant asked Nyekan why he was there, the trooper responded that he was dispatched to investigate the homeowner's complaint of juveniles throwing rocks. Defendant responded that the homeowner "had been flashing the kids, and the kids didn't do shit." Nyekan described defendant's demeanor as irate, adding that defendant continued to drink beer while speaking with him. When Nyekan mentioned the videotape, defendant responded by saying, "show me the f---ing tape." When defendant disregarded Nyekan's instruction to lower his voice and refrain from cursing because children were present, Nyekan ceased his conversation with defendant and began speaking with Michael Passarella in hopes of resolving the situation.
Nyekan testified that while speaking with Passarella, defendant remained in the background, uttering obscenities such as "you f---ing troopers don't know shit," as well as racial slurs at Nyekan, who is African-American. According to Nyekan, defendant also said "why don't you come see me outside of that uniform, and we will see how tough you are." When pressed by Nyekan, defendant denied that his statement was a threat.
At that point, Nyekan asked one of the persons present, T. Jay Hummel, to escort defendant away because the situation was continuing to escalate. While defendant was being escorted away, he turned around and said, "I'll kill you, you f---ing trooper nigger." At that point, Nyekan told defendant he was under arrest, and directed him to put his hands behind his back. According to Nyekan's testimony, defendant did not comply with those instructions, instead raising his hands in a fighting position, at which point Nyekan radioed for backup. After defendant repeatedly ignored Nyekan's instructions to put his hands behind his back because he was under arrest, Nyekan sprayed defendant with pepper spray, after first issuing a verbal warning.
While waiting for backup officers to arrive, Nyekan attempted to grab defendant's wrists to apply the handcuffs, but defendant resisted, flailing his arms. Nyekan testified that defendant grabbed him by his shoulders and threw a punch at him, which he was able to block with his forearm. At that point, Nyekan grabbed defendant by the collar, and finally was able to gain control of defendant only by pushing him against a fire pit. According to Nyekan, even while defendant was on the ground, defendant repeated his threats to kill Nyekan and continued to take swings at the trooper's face. Nyekan could not handcuff defendant because he continued to struggle, and Nyekan sat on him until a backup officer arrived. In fact, in an effort to stand up, defendant grabbed Nyekan's shirt, causing it to rip. Only after Trooper Frank Restuccio arrived were the two able to finally handcuff defendant.
Nyekan sustained a scrape to his right knee, which did not require medical attention. At 9:00 p.m., approximately two and one-half hours after the incident in question, a local hospital measured defendant's blood alcohol level (BAC) as 0.17 percent.
The State presented the testimony of Michael Passarella, who identified himself as defendant's brother-in-law. When Passarella testified that defendant did not use the "n-word" until he was "probably at least 100 feet away," the prosecutor asked Passarella whether he had declined to provide a taped statement to law enforcement. Passarella responded that he did not recall ever being asked to do so. At that point, the prosecutor showed him a police report summarizing the remarks he had purportedly made to Detective Norbuts, who was investigating the incident, and asked him if that report refreshed his recollection. Passarella answered "no."
After Passarella denied that he heard Nyekan advise defendant that he was under arrest, the prosecutor asked Passarella if he recalled telling detectives, a few days after he had given his initial statement, that he had indeed heard Nyekan advise defendant "multiple times that he was under arrest." Passarella answered "yes." The prosecutor also asked Passarella if he recalled telling an investigating detective that Nyekan warned defendant that if he "kept it up," he would be arrested for drunk and disorderly conduct. Again, Passarella answered "yes." Not until after the State had rested ...